Title: "Water Boundries"
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Title: "Water Boundries"
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Language: English
Publisher: Landmark Enterprises , Rancho Cordova, California
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collections - "Water Boundries" (JDV Box 40)
General Note: Box 30, Folder 6 ( Water Boundries - 1983, 1990, 1991 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text





WATER BNDAR


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GEORGE M.COLE


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WATER BOUNDARIES


by
George M. Cole, PLS
President, Florida Engineering Services Corporation


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LANDMARK ENTERPRISES
10324 Newton Way
Rancho Cordova, California 95670


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WATER BOUNDARIES











"And as for the western border, ye shall even have the Great Sea for a
border; this shall be your west border."
Numbers 34:6













































Copyright 1983 George M. Cole
All rights reserved
Reproduction or translation of any part of this work beyond that permitted by the United States
Copyright Act without the permission of the copyright owner is unlawful. Requests for
permission or further information should be addressed to the Permissions Department,
Landmark Enterprises.

Printed in 1983 in United States of America by
Edwards Brothers-Ann Arbor, Michigan
ISBN 0-910845-13-1





ii
















CONTENTS



PROLOGUE 1

1. SOVEREIGN/UPLAND WATER
BOUNDARIES 5

1.1 Background and History 5
1.2 Boundary Definitions in Tidal Waters 6
1.3 Boundary Definitions in Non-tidal Waters 7
1.4 Which Waters Are Sovereign? 8
1.5 Techniques for Locating Tidal Boundaries 9
1.5.1 Tides and Tidal Datums 9
1.5.2 Gauging Techniques for Tidal Datums 15
1.5.3 Computations of Datums by Simultaneous
Comparison 16
1.5.4 Techniques for Locating Tidal Datum
Lines 21
1.5.5 Typical Tidal Boundary Determination 21
1.5.6 Requirements of Florida's Coastal Mapping Act 28
1.6 Techniques for Locating Non-tidal Boundaries 30
1.6.1 Changes in Composition of the Soil 31
1.6.2 Geomorphological Features 32
1.6.3 Botanical Evidence 33
1.6.4 Water Level Records and Other Evidence 33
1.6.5 Typical Non-tidal Boundary Determination 34
1.7 Use of Government Land Office Meander Lines as Boundaries 41
1.8 Riparian Rights Relative to Sovereign/Upland Boundaries 43
1.9 Boundaries of Leases in Sovereign Waters 44














2. STATE/FEDERAL WATER BOUNDARIES 49

2.1 Background and History 49
2.2 Boundary Definitions 49
2.3 Techniques for Locating State/Federal Water Boundaries 51


3. FEDERAL WATER BOUNDARIES 55

3.1 Introduction 55
3.2 Definitions of Baselines for Offshore Boundaries 57

4. BOUNDARIES IN NON-SOVEREIGN WATERS 61

4.1 Introduction 61
4.2 Boundaries in Streams 61
4.3 Boundaries in Lakes 61
4.4 Changes in Non-sovereign Water Boundaries 61

EPILOGUE 62

BIBLIOGRAPHY 65

LAW CASE CITATIONS 67
















PROLOGUE




Water boundaries are perhaps the oldest and most widely used of man's boundaries.
Yet, in today's society, they are probably the most frequently and bitterly contested bound-
aries. Water bodies form excellent natural boundaries in that they are easily defended and
easily recognized. Yet, when attempts are made to precisely locate such boundaries, complex
technical and legal problems can result. This is primarily due to the fact that the land/water
interface is dynamic. The surfaces of most water bodies are constantly changing due to tides,
meteorological conditions, and many other factors. In addition, the shoreline in many areas
changes frequently due to waves and currents.
Therefore, unlike other boundaries, one must consider a third dimension height and a
fourth dimension time when dealing with water boundaries. Thus water boundaries must be
considered separately from the two dimensional land boundaries. Consequently, unique laws
and techniques have developed for defining and locating water boundaries.
This treatise is an attempt to provide a comprehensive overview of both the legal and
technical aspects of the unique and specialized area of water boundaries. Recent land use
practices have created a growing demand for precisely located and legally defensible water
boundaries. This has resulted in a need for literature describing currently accepted theories and
techniques for locating such boundaries. This is written in an attempt to fill that need.
Although originally written for surveying students and practicing surveyors, it should
also be helpful and of interest to a wide range of professionals, other than surveyors, who are
involved with coastal or submerged land. These would include attorneys involved with water
boundary issues, public land managers, title and real estate professionals, and those dealing
with land planning, land development, offshore mineral extraction, and other related fields.
The text is divided into four segments offering, hopefully, a logical coverage of water
boundaries. The first segment covers sovereign/upland boundaries. This includes both tidal
and non-tidal water bodies and is the subject receiving the greatest emphasis since it includes
the most frequently occurring water boundary problems. Progressing seaward, the second
segment covers offshore boundaries between state and federal jurisdictions. Moving further
seaward, the third section contains a brief overview of federal seaward boundaries and
jurisdictional limits. Finally, the fourth section discusses boundaries in waters where the
submerged lands are not publicly owned. At the conclusion, all literature and case law cited in
the text is referenced.
Although oriented toward the prevailing conditions and current laws in the State of
Florida, a large percentage of the information presented is applicable to other states. However,
care should be taken to assure applicability when using the information contained herein in
other states.























































2
















1. SOVEREIGN/UPLAND WATER BOUNDARIES

1.1 Background and History 5
1.2 Boundary Definitions in Tidal Waters 6
1.3 Boundary Definitions in Non-tidal Waters 7
1.4 Which Waters Are Sovereign? 8
1.5 Techniques for Locating Tidal Boundaries 9
1.5.1 Tides and Tidal Datums 9
1.5.2 Gauging Techniques for Tidal Datums 15
1.5.3 Computations of Datums by Simultaneous Comparison 16
1.5.4 Techniques for Locating Tidal Datum Lines 21
1.5.5 Typical Tidal Boundary Determination 21
1.5.6 Requirements of Florida's Coastal Mapping Act 28
1.6 Techniques for Locating Non-tidal Boundaries 30
1.6.1 Changes in Composition of the Soil 31
1.6.2 Geomorphological Features 32
1.6.3 Botanical Evidence 33
1.6.4 Water Level Records and Other Evidence 33
1.6.5 Typical Non-tidal Boundary Determination 34
1.7 Use of Government Land Office Meander Lines as Boundaries 41
1.8 Riparian Rights Relative to Sovereign/Upland Boundaries 43
1.9 Boundaries of Leases in Sovereign Waters 44














1. SOVEREIGN/UPLAND WATER
BOUNDARIES



1.1 Background and History

Currently, within the United States, it is generally accepted that the individual states hold
title on behalf of the public to most of the submerged lands under navigable waters within their
respective boundaries. This ownership is by virtue of what is known as the public trust doctrine
which, although chiefly a product of English common law, has roots as far back as the ancient
Roman Civil Code of Emperor Justinian I, written about 500 A.D. Perhaps the earliest mention
of this theory in English law was by Thomas Digges, an engineer, surveyor and lawyer during
the reign of Queen Elizabeth I, in a book entitled "Proofs of the Queen's Interest in Land Left
by the Sea and the Salt Shores Thereof'. This treatise formed the basis for the Crown's claim to
the submerged lands of the kingdom.
In America, this doctrine began to take its present shape with a series of U.S. Supreme
Court cases beginning with Martin v. Waddell in 1842. According the Court in that case:

"When the revolution took place the people of each state became
themselves sovereign, and in that character hold the absolute right to all
their navigable waters in the soils under them for their own common
use .. .

In 1845, in Pollard's Lessee v. Hargan, the court ruled that states admitted to the Union
after the original 13 colonies also had these rights. In 1876, the case of Barney v. Keokuk ruled
that state title in navigable waters extended to inland waters as well as tidal waters with the
following words:

"The confusion of navigable with tide water, found in the monuments of
the common law, long prevailed in this country, notwithstanding the broad
differences existing between the extent and topography of the British Island
and that of the American continent ... And since this court has declared
that the Great Lakes and other navigable waters of the country, are, in the
strictest sense entitled to the denomination of navigable water, and amen-
able to the admiralty jurisdiction, there seems to be no sound reason for
adhering to the old rule as to the proprietorship of the beds and shores
of such waters. It properly belongs to the States by their inherent
sovereignty. "

Thus it may be generally stated that the several states, in their sovereign capacity, hold
title to the beds under navigable waters.
With this background, we may now address the key issue of this discussion. This issue is
the limit of sovereign ownership. In this chapter, we are concerned with the inshore limit, i.e.










where the sovereign submerged lands meet the uplands subject to private ownership.
This issue of sovereign/upland boundaries may be divided into two separate topics. These
are the definition of the boundary and the location of the boundary. (Graber 1980) These topics
form the basis for the remainder of this chapter.

1.2 Boundary Definitions in Tidal Waters

The following is an attempt to define the sovereign/upland boundary in tidally affected
waters by examining existing common and statutory law. This examination will begin with
English case law and continue on into U.S. case law and statutory laws.
Following the claim of submerged lands in behalf of the Crown made by Thomas Digges
circa 1568 [refer to the previous chapter], there apparently was not immediate judicial
acceptance of the claim. In the following century, however, the doctrine became generally
accepted as evidenced by the writings of Lord Mathew Hale, a jurist who was to become the
Lord Chief Justice. About 1666, he espoused the public trust doctrine, as put forth by Digges,
in his treatise De Jure Maris. In this writing, he concluded that the foreshore, which is
overflowed by "ordinary tides or neap tides, which happen between the full and change of the
moon", belonged to the Crown.
With our knowledge of the tides today, it is obvious that Lord Hale was incorrect in
equating "neap tides" with "ordinary tides". At the very least, his definition was ambiguous.
This definition was clarified in English common law by the case of Attorney General v.
Chambers in 1854. The Chambers case, reflecting tidal theory developed after Hale's writings,
clearly ruled that the ordinary high water mark was to be found by "the average of the medium
tides in each quarter of a lunar evolution during the year [which line] gives the limit, in the
absence of all usage, to the rights of the Crown on the seashore."
In the United States, there apparently was no case law giving technical clarification to the
boundary until 1935 and the U.S. Supreme Court's landmark decision in Borax Ltd. v. City of
Los Angeles. In essence, this decision called for application of modern scientific techniques
for precisely defining the boundary in question by the following:

"In view of the definition of the mean high tide, as given by the United
States Coast and Geodetic Survey that mean high water at any place is the
average height of all the high waters at that place over a considerable period
of time, and the further observation that from theoretical considerations of
an astronomical character there should be a periodic variation in the rise of
water above sea level having a period of 18.6 years, the Court of Appeals
directed that in order to ascertain the mean high tide line with requisite
certainty infixing the boundary of valuable tidelands, such as those here in
question appear to be, 'an average of 18.6 years should be determined as
near as possible.' Wefind no error in that instruction.''

As may be seen from the above, the Borax decision applied modern technical knowledge
and set forth a workable technique for precisely locating the boundary in question. At the time
of this writing, this case still prevails in U.S. common law.











Case law in the various coastal states has, in the main, followed the English common and
statutory law and its updated definition as put forth in the Borax decision. Sixteen states
(Alabama, Alaska, California, Connecticut, Florida, Georgia, Maryland, Mississippi, New
Jersey, New York, North Carolina, Oregon, Rhode Island, South Carolina, Texas, and
Washington) have followed this course (Maloney and Ausness 1974; Cole 1977). It should be
noted that six Atlantic Coast states (Delaware, Maine, Massachusetts, New Hampshire,
Pennsylvania, and Virginia) recognize the mean low water line as the sovereign/upland
boundary (Maloney and Ausness 1974).
Louisiana also is an exception to the majority with the adoption of the civil law boundary
of the line of the highest winter tide as is Hawaii which uses the upper reaches of the wash of the
waves (Maloney and Ausness 1974).
It should be further noted that there are numerous exceptions to the above generalized
statements, often involving boundaries in Spanish or Mexican grants. For example, Texas case
law (Luttes v. State) has held "that the line under Spanish (Mexican) law is that of mean higher
high tide, as distinguished from the mean high tide of the Anglo-American law". Presumably,
the same rule would apply in other states with coastal Spanish grants.
The State of Florida has codified its common law on this subject. The Coastal Mapping
Act of 1974 (Chapter 177, Part II, Florida Statutes) declares that "mean high water line along
the shores of land immediately bordering on navigable waters is recognized and declared to be
the boundary between the foreshore owned by the State in its sovereign capacity and upland
subject to private ownership." The Statute also defines the mean high water line using the
Borax definition.

1.3 Boundary Definitions in Non-tidal Waters

Legal definition of sovereign/upland boundaries in waters not affected by tides will now
be examined. With the lack of the predictable rising and falling found in tidal waters, obviously
different definitions will apply.
English common law offers little opinion regarding non-tidal water boundaries. During
the period when tidal boundaries were being defined in England, it was assumed that only tidal
waters were public domain; perhaps due to the fact that as a small island kingdom, England had
few inland waters important for public use. On the other hand, American common law offers
considerable opinion on these boundaries.
The leading definition (Maloney 1978) in federal case law, Howard v. Ingersoll, gives the
following instructions for determining the boundary of such waters:

"This line is to be found by examining the bed and banks and ascertain-
ing where the presence and action of waters are so common and usual and so
long continued in all ordinary years, as to mark upon the soil of the bed a
character distinct from that of the banks, in respect to vegetation, as well as
in respect to the nature of the soil itself."

Case law in Florida conforms substantially with federal law on this subject. The case of
Tilden v. Smith illustrates this:











'High-water mark, as a line between a riparian owner and the public,
is to be determined by examining the bed and banks, and ascertaining where
the presence and action of the water as so common and usual, and so long
continued in all ordinary years as to mark upon the soil of the bed a
character distinct from that of the banks, in respect to vegetation as well as
respects the nature of the soil itself. High-water mark means what its
language imports a water mark."

Traditionally, in non-tidal waters, the courts have allowed the use of botanical and
geological evidence, as evidenced by the above decisions, and disallowed the use of mathe-
matical averaging of water levels. This is typified by the court's decision in Kelly's Creek and
N.W.R. Co. v. United States:

"The high water mark is not to be determined by arithmetical calcula-
tion; it is a physical fact to be determined by inspection of the river bank."

Recently, however, there has been an apparent trend to place more reliability on water
level records, possibly due to the growing need for the precision, repeatability and lack of
ambiguity which results from a mathematical solution. Typical of this are two Florida cases,
U.S. v. Parker and U. S. v. Joder Cameron. The court in the Cameron case found as follows:

"There is no logical reason why a fourth approach to determining the
line or ordinary high water may not consist of comparing reliable water
stage and elevation data. Indeed, for a body of water whose levels fluctuate
considerably with changes in climate, accurate water stage and elevation
data may provide the most suitable method for determining the ordinary
high water mark."

In addition, a section of the Florida Statutes (Chapter 253.151) specifically requires the
consideration of such evidence, when available, in the determination of meandered lake
boundaries. This section has been declared unconstitutional by the Florida Supreme Court in
State of Florida et al. v. Florida National Properties, Inc., etc. However, this finding was not
based on any finding of error in the water levels method.

1.4 Which Waters are Sovereign?

An obvious question which arises when one is defining the boundary between sovereign
waters and private uplands is "Which waters are sovereign?"
A simplistic answer to the question is "navigable waters". However, that is not an
explicit answer since there are almost as many definitions of navigability as there are water
bodies. In addition, there appears to be some water bodies which are navigable-in-law
although not necessarily navigable-in-fact.
In non-tidal waters, navigability for title purposes generally is a question of navigability-
in-fact, although various definitions of navigability-in-fact do appear in case law in the various










states. In Florida, recent case law (Odom v. Deltona) offers specific clarification to that state's
definition in non-tidal waters. In that case, the court held that "Florida's test for navigability is
similar, if not identical, to the Federal Title Test." The Federal Title Test was defined as being
"based on the body's potential for commercial use in its ordinary and natural condition."
In tidal waters, navigability for title purposes appears to be not always based on
navigability-in-fact. In some states, public ownership appears to extend to submerged lands
subject to the ebb and flow of the tide, regardless of actual navigability. An excellent indepth
coverage of this subject (Maloney and Ausness 1974) indicates that in Louisiana, Maryland,
Mississippi, New Jersey, New York and Texas, state ownership extends to all waters subject to
tidal ebb and fellow; while in California, Connecticut, Florida, North Carolina and Washington,
public ownership is based on navigability-in-fact. The same article states that "Alabama,
Oregon and South Carolina find tidal watercourses prima facie navigable and thus presume the
land beneath the watercourses to be sovereign land, but this presumption of state ownership
may be rebutted by a finding on non-navigability."
It is noted that there is a least one Florida case which reflects a opinion different than the
above in regard to the State of Florida. Martin v. Busch states that "the State, by virtue of its
sovereignty, became the owner of all lands under the navigable waters within the state,
including the shores or spaces, if any, between the ordinary low water mark and ordinary high
water mark, and also all the tidelands, viz. lands covered and uncovered by the daily ebb and
flow of normal tides." [Emphasis added]
However, the preponderance of Florida case law appears to hold the opinion reflected in
the Maloney article. For example, Clement v. Watson states that "waters are not under our law
regarded as navigable merely because they are affected by the tide". Another explicit case is
the City of Tarpon Springs v. Smith which states, "Waters permanently or at intervals, where
the waters thereon are not in their ordinary state useful for public navigation." A recent case
(Florida Board of Trustees v. Wakulla Silver Springs Company) also reflects this opinion.

1.5 Techniques for Locating Tidal Boundaries

1.5.1 Tides and Tidal Datums

The tide is the alternating rise and fall in sea level produced by the gravitational force of
the moon and sun. Other non-astronomical factors, such as meteorological forces, ocean floor
topography and coast line configuration, also play an important role in shaping the tide
(National Ocean Survey 1976).
To clearly see the mechanics of the tide producing forces, we can observe a simplified
view of a single constituent of the tides, as shown in Figure 1 (Zetler 1959). This illustrates the
attractive force of the moon when it is in the earth's equatorial plane on an earth covered with a
layer of water. Note that there is a bulge in the water on both sides of the earth in line with the
moon and a low water zone in between. The high water on the side of the earth closest to the
moon is caused by the moon's pull on the fluid water. On the side opposite the moon, the
greater centrifugal force as the earth and moon spin causes the high water.
Since the average interval between consecutive transits of the moon (upper and lower) is
12.42 hours, the moving high waters shown in Figure 1 take the form of a sine wave with a
period of 12.42 hours as shown in Figure 2.





















EARTH'S SURFACE




OCEAN HEIGHT



TO R
MOON


POLE


FIGURE 1














0

0 _O









































-- 12.42 Hrs.





Typical Semi-Diurnal Tide

FIGURE 2














M2
Constituent
only






S2
Constitutent
only






N2
Constituent
only







01
Constituent
only







K,
Constituent
only







All Five Major
Constituents
For This Area


-3

- 2

-1 -1

-0 -0
D a 12 18 0 6 12 1i


-3 -3



-1 -1

-0 -0
0 12 18 0 a 12 18


-3 -3

-2






-1 -1
-0 -0
0 a 12 18 0 a 12 18


-3 "3



1 -1






-0 -0







3 3








S 6 12 18 0 12 18

TIDE PREDICTIONS
TYPICAL THIRD QUARTER MOON TIDE
SHELL POINT, FLORIDA


FIGURE 3















M2
Constituent
only






S2
Constitutent
only






N2
Constituent
only






0O
Constituent
only






K,
Constituent
only








All Five Major
Constituents
For This Area


-3 -3










-0 -0
D 6 12 18 0 12 1F


-3 -3








-1 -1

-0 -0
0 6 12 18 0 6 12 1


-3 -3








1 -1


-0 -0
0 8 12 18 0 8 12 18


3 -3


22 1


.0 0
S 6 12 18 6 12 18


-3 -3






-0 -0








0 6 12 18 0 8 12 18


TIDE PREDICTIONS
TYPICAL THIRD QUARTER MOON TIDE
SHELL POINT, FLORIDA
FIGURE 4










Likewise there is a sine wave with a period of 12.00 hours following the apparent rotation
of the sun.
Likewise, each of the many other relationships between the sun, earth and moon (which
cause changes in sea level) may be depicted as a sine wave of a specific period. For example,
the elliptical orbit of the moon about the earth produces a constituent wave with a period of 27
2 days with high water at the time of perigee (when the moon is closest to the earth) and low
water when the moon is the greatest distance away. The longest of such constituent periods
normally considered is that associated with the regression of the moon's nodes, which has a
period of 18.6 years.
The resultant tide which is experienced is the composite, or algebraic sum, of all of the
above mentioned constituent cycles.
It is noteworthy that when the high water of more than one constituent is in phase, tides
higher than normal occur. Such is the case twice a month when the moon's and the sun's
principal constituents are in phase. This occurs when the earth, moon, and sun are in a line and
produce the so-called spring tides.
Figure 3 and 4 are illustrations of the major constituent waves comprising a typical tide.
These figures illustrate predicted tides for two day periods in the Shell Point, Florida area. For
each two day period, a prediction was made assuming that only one of the five major
components (of the tides in this area) was causing the tide. These components included the M2
constituent which is the main lunar semi-diurnal component (period = 12.42 hours); the S2
constituent which is the main solar semi-diurnal component (period = 12.00 hours); the N2
constituent which is the lunar component due to monthly variation in the moon's distance
(period = 12.66 hours); the 01 constituent which is the main lunar diurnal component (period
= 25.82 hours); and the K, constituent which is the solar-lunar component due to declination
(period = 24.07 hours).
At the bottom of Figure 3 and 4 are tide predictions using all five of the major constituents
for this area. The bottom curves would closely resemble the actual tide observed, barring
unusual meteorological conditions since the remainder of the 37 constituents typically used for
predicting the tides (in this country) are relatively insignificant in this area for illustrative
purposes.
Figures 3 and 4 also graphically illustrate the previously mentioned spring tide phenome-
non occurring when the sun's and moon's constituent cycles are in phase. Note that in Figure 3,
which is at the time of full moon, the peaks of the M2 and S2 cycles occur at roughly the same
time. In Figure 4, which is at the time of third quarter moon, the peaks of the M2 and S2
constituents are not coincident in time. It may be seen that the composite or actual tide, as
reflected by the bottom cycle, is significantly higher in Figure 3 than in Figure 4 due to the 'in
phase' condition.
Occasionally, this spring tide occurrence takes place at the time of the moon's perigee
(when the moon is closest to the earth). Therefore, the highest point of the above mentioned
cycle resulting from the moon's proximity to earth is in phase with (and therefore added to) the
highest points of the cycles resulting from the moon's and sun's apparent rotation around the
earth. This produces abnormally high tides which have been associated with historic coastal
flooding (Wood 1976).
A tidal datum is a plane of reference for elevation which is based upon tidal cycles.
Considering the above discussion, it is obvious that to be statistically significant, a tidal datum
should include all of the possible variations in tidal height. In other words, a tidal datum is











usually considered to be the average of all of the constituent periods. Therefore, a tidal datum is
usually considered to be the average of all occurances of a certain tidal extreme for a period of
19 years (18.6 years rounded to the nearest whole year).
For example, mean high water is defined as the arithmetic mean of all the high waters
occurring in a tidal epoch of 19 years. For consistency, the National Tidal Epoch (currently
1960-1978) is used. Likewise, mean lower low water is defined as the arithmetric mean of the
lower of the low tides in each day over a specific 19 year tidal epoch. Other datums are defined
similarly.
It should be noted that tidal datums are a local phenomenon because of the various
previously mentioned local forces shaping the tides. There can be considerable difference in
the elevation of a tidal datum from point to point in even the same general vicinity (Cole 1977).
Therefore for use for a water boundary, the datum must be determined in the immediate area of
its intended use.
Because of the local variation in the elevation of tidal datums, it is obvious that datums
would have to be determined quite densely along a coast for precise boundary determination. It
is equally obvious that it would be impractical to do so if 19 years of observation are necessary
at each desired datum point. Fortunately, methods have been developed for correcting short
term observations to the equivalent of a 19-year mean. The most satisfactory method to
achieve this is by simultaneous observations at the desired point and at a control station at
which 19-year mean values are known. The observed mean tidal datums may then be reduced
to a value equivalent to a 19-year mean by a mathematical process using a ratio of tide ranges
observed at the two stations (Marmer 1951). Methodology for this will be discussed in later
sections.

1.5.2 Gauging Techniques for Tidal Datums

Most tide observations of duration longer than a few hours are made on recording tide
gauges which either continuously or at fixed intervals, record the water level. The simplest of
these are operated by a float that moves up and down with the rise and fall of the water level in a
stilling well. The vertical movement of the float moves a pencil back and forth across a strip of
paper driven by a clock mechanism resulting in a graph of the rising and falling tide. A refined
version of this gauge is being widely used. This gauge punches the water level reading in
binary code onto paper tape ten times an hour. This punched tape output allows for easy
processing of the resulting data by computer.
Other types of gauges are available which use pressure sensors, or which measure the
water height by timing sound waves or laser beams bouncing off the water surface. These have
a variety of output devices, usually with graphic traces or magnetic tapes.
When recording gauges are installed for datum determination, a tide staff, usually
consisting of a graduated vitrified glass scale, is installed near the gauge. Daily comparisons
are made between the gauge and the staff to determine the constant difference in reading
between the two. The staff is connected by leveling to several permanent bench marks in the
area. These bench marks will preserve the elevation of the tidal datum that is determined even
though the gauge and staff are removed.
For very short term observations, a simple graduated staff, which may be read at 5 or 10
minute intervals, is often used. This offers minimum expenditure for equipment. This also










offers a minimum of effort and time needed for installation since the staff may be either driven
into the water bottom or nailed to a piling. In some areas where it may be desirable to determine
a tidal datum (such as inter-tidal marshlands), a manually read staff is the only practical guage.
Float type gauges tend to experience problems in such areas which are dry for a portion of the
tidal cycle.
When tide stations are established in organized programs along a coastline, a hierarchy of
stations is usually established. This scheme uses long term (minimum of 19 years of observa-
tion) stations as primary control stations. These are spaced typically at one or two hundred mile
intervals. Within the primary control framework, a series of secondary stations are usually
operated for at least one year. These are spaced with at least one in each bay or other area with
unique meteorological conditions which tend to cycle annually. Tertiary stations, with 30 to 90
days of observations, are used to further densify the coastline between the secondary stations.
In areas with such a hierarchy of tide stations, datums between tertiary stations may
generally be established, when needed, by only a few cycles of simultaneous observations.

1.5.3 Computation of Datums by Simultaneous Comparison

Except at a limited number of stations where tidal observations have been conducted for a
complete 19-year tidal epoch, the equivalent elevation of a long-term tidal datum at a given
point is usually determined by short-term observations corrected by the process of simultan-
eous comparison with a long-term station. This process requires observation of all of the high
and low tidal extremes during the short term of observations at both the control and subordinate
stations.
The Standard Method (Marmer 1951) for accomplishing this process, also known as the
range ratio method, is based on the following formulae:

Notation
MHW = 19-year mean high water
MTL = 19-year mean tide level
MLW = 19-year mean low water
MR = 19-year mean range
TL = mean tide level for observed period
R = mean range for observed period
s = subscript used to denote subordinate station
c = subscript used to denote control station

The first formula calculates the subordinate 19-year mean range:

MRs MRc
Rs Rc (1)

This may be restated as follows:

MRs = MRc x Rs
MRs Rc (la)
Re (la)











Computation Procedures (Cole 1981) Amplitude Ratio Method


Control Subordinate
--- -- HWs


Ac Rc As


Rc T TL
t t

Rc
2
Formulae:

(1) Rs = Rc x As (2) MRs =MRc x As
Ac Ac

(3) MHWs = (HWs Rs) (TLc MTLc) + MRs
2 2
Where:

Ac = Observed interval between peak high water and elevation on tide
curve at control station as determined by t (See illustration above)

As = Observed interval between peak high water and elevation on tide
curve at subordinate station as determined by t (See illustration above)
HWs = Observed height of peak high water at subordinate station (See illus-
tration above)
MHWs = Computed 19-year mean high water at subordinate station
MRc = Known 19-year mean tidal range at control station
MRs = Computed 19-year mean tidal range at subordinate station
MTLc = Known 19-year mean tide level at control station
Rc = Range or interval between observed high water and observed low
water at control station (See illustration above)
Rs = Computed range or interval between observed low water and low
water at subordinate station
t = The elapsed time between two points of equal elevation on the tide
curve. This may be any convenient time interval, but the same interval
must be used on both the control and subordinate curves
(See illustration above)
TLc = The point that is half-way between the observed high water and
observed low water at the control station (See illustration above)

Figure 5












The second formula calculates the subordinate 19-year mean tide level:


TLc MTLc = TLs MTLs (2)

This may be restated as follows:

MTLs = TLs (TLc MTLc) (2a)

Formulae (3) and (4) calculate the 19-year mean high and mean low water by applying
half of the mean range to the mean tide level.

MRs
MHWs = MTLs + -
2 (3)

MRs
MLWs = MTLs MR
2 (4)

As mentioned above, the Standard Method requires observation of all the high and low
tidal extremes during the period of observation.
In recent years, a demand has developed for frequent determination of mean high water
elevations in areas where only the upper portion of most tidal cycles are observable. These are
areas such as marshes, mud flats, and tidal creeks with wide, flat intertidal zones.
Two alternate methods are in current use for such determinations, the Amplitude Ratio
method and the Height Difference method.
The Amplitude Ratio method (Cole 1981) was derived to mathematically duplicate the
results of the Standard Method when only the top portion of the tidal cycle is available at the
unknown or subordinate station. This method recognizes that for two sine waves of similar
wave length but unequal amplitude, the differences in height between the peaks of the cycles
and the points at which the curves "fit" time periods of equal length, is proportional to the
ratio of the two amplitudes. It is noted that this method requires a computation on each
observed cycle rather than using mean data for the entire observational period.
Referring to Figure 5, this method may be defined by the following formulae:

The first formula computes what the observed range at the subordinate station would have
been if the entire cycle could have been observed.

As
Rs = Rc X --
Ac (5)

The second formula computes the 19-year mean range at the subordinate station.

As
MRs = MRc x
Ac (6)











Computation Procedures Height Difference Method

Control Subordinate


HWc

MHWc


Formula:


(1) MHWs = HWs + (HWc MHWc)


Where:


= Observed height of peak high water at control station


= Observed height of peak high water at subordinate station


= Known height of 19-year mean high water at control station


= Computed height of 19-year mean high water at subordinate station








Figure 6


HWs


HWc


HWs


MHWc


MHWs










The third formula computes the 19-year mean high water at the subordinate station.

MHWs = (HWs Rs) (TLc MTLc) + MRs (7)
2 2

The Height Difference method (Swanson 1974) is the second alternate method. This
method also gives results comparable to the Standard Method in areas where there is little or no
difference in range between the control and subordinate station or where the period of
observation covers a month or more. This method assumes that the elevation difference
between mean high water and peak high water is the same as both the control and subordinate
stations for a given tidal cycle. For observations of more than one cycle, it assumes that the
elevation difference between 19-year mean high water and the mean high water for the period
of observation is the same at both stations. Figure 6 illustrates this method for one tidal cycle.
As may be seen, the height difference between observed high water and the known
19-year mean high water at the control station is applied to the observed high water at the
subordinate station to estimate the 19-year mean high water at that location.
Where there is a substantial difference in range between the control and subordinate
stations, this method can result in an incorrect estimate of mean high water at the subordinate
station. However, if the range ratio between the control and subordinate station has previously
been determined by the Standard or Amplitude Ratio method, the following formulae may be
used to correct the value determined by the Height Difference method (Zetler 1981):

(1 AR)
Correction (Rc MRc)
2
Rs
Where AR -
Rc


MHWs = MHWs (by Height Difference) + Correction

R = Observed range

MR = 19-year mean range

MHW = 19-year mean high water

c = subscript denoting control station

s = subscript denoting subordinate station










1.5.4 Techniques for Locating Tidal Datum Lines


The distinction between the datum or elevation of a tidal boundary and the tidal datum line
is an important concept in water boundaries. A tidal datum will remain constant, for practical
purposes, at a given location over the years. On the other hand, a tidal datum line, which is the
intersection of the datum with the rising land, may vary considerably as the land erodes or
accretes under the same elevation of water. Also, it is emphasized that the line can be
ambulatory and therefore must be related to a specific point in time.
Once a local tidal datum has been established, there are basically three methods which
may be used for locating the corresponding tidal datum line in the area around the datum
determination. These are the staking method, the topographic method, and tide coordinated
aerial photography.
Often the most practical of these is the staking method. This method recognizes that a tidal
datum line forms a vertically undulating line as it intersects the land and accordingly allows the
water itself to define this line. As an illustration of this method, assume that the correct reading
on a staff for mean high water has been previously determined. On a tide that reaches or
exceeds mean high water, the staff should be observed. When the water level reaches the
pre-determined staff reading of mean high water, a signal is given. At the signal, personnel in
the area around the staff should place a series of stakes at frequent intervals along the incoming
edge of the water. These stakes, defining the mean high water line, may then be located by
traverse, range and bearing, or other conventional surveying procedures. The obvious advan-
tage of this method is that the surveyor actually sees the line on the ground and can identify
each inflection point.
The topographic method consists of assuming that the local datum line is a topographic
contour in the immediate area around the datum determination. This contour line is then
located by leveling and conventional horizontal surveying procedures. Caution is necessary
with this method since only points on the line are being located. Therefore, it is easy to miss
significant breaks and inflections in the line.
Tide coordinated aerial photography is usable for mapping a tidal datum line when the
tidal datum line is not obscured by vegetation. This method involves the use of aerial
photography coordinated by an observer on the ground watching a tide staff. At the precise
time that the tide reaches the predetermined staff reading for the tidal datum, the observer
signals the aircraft, and the water/land interface is photographed on black and white infrared
film. The infrared photography graphically depicts the interface between the water and land.

1.5.5 Typical Tidal Boundary Determination

To illustrate a typical tidal boundary determination, data will be presented from an actual
survey of a tract of land on an island off of the northwest coast of Florida.
The tract was located on the inshore side of the island, which acts as a barrier for
Apalachicola Bay. It is illustrated in Figure 7. As may be seen, the tract had an open shoreline,
for the most part, with marshy embayments at either end.
A tide control station established by the National Ocean Survey existed on the island
about 2.5 miles east of the eastern end of the project. It was decided that it would be advisable
to establish additional tide stations at six points within the project itself, using the existing tide





















































Figure 7

22
















































TIDE STAFF


Figure 8








23










station as control. The locations of these points are also illustrated on Figure 7.
The simultaneous tidal observations necessary to determine a tide datum at the six
subordinate stations were accomplished by means of graduated staffs, such as illustrated on
Figure 8, at each subordinate station and both a graduated staff and an analog recording gauge
at the control station.
At the control station, the analog guage and staff were located at the end of an old dock, very
close to the original gauge location when the station was established. At the subordinate
stations, each staff was located in the intertidal zone, very close to the estimated line of mean
high water. In the two marsh areas, this involved placement of the staffs in the marsh grass
itself.
Two bench marks were established in the vicinity of each subordinate staff and levels
were run between the staff and the marks to preserve the datum determined by the observa-
tions.
Two tidal bench marks were recovered at that control station, and levels run from the
bench marks to the staff at that station to determine the staff reading of mean high water. Daily
comparisons between the gauge and staff at the station determined the gauge/staff relationship.
Since an analog recorder was used at the control station, observations were obtained
continually at that point. Observations were taken at the subordinate stations at five minute
intervals by personnel reading the staffs only for the period around predicted high tide. An
abstract and plot of readings for a typical tidal peak for both the control and subordinate station
1, may be seen in Figure 9.
Using the observed data, mean high water at the subordinate station was computed by
means of the Amplitude Ratio Method as follows:

Known Data at Control Station

MHWc = Mean High Water on staff = 59.12ft.
MRc = MeanRange = 1.51ft.
MRc 1.51
MTLc = MeanTideLevel = MHWc R = 59.12 = 58.36ft.
2 2

Observed Data at Control Station (See Figure 9)

HWc = Observed High Water on staff = 59.58 ft.
LWc = Observed Low Water on staff = 57.69 ft.
59.58 + 57.69
TLc = Observed Half Tide Level = = 58.64 ft.
2
Ac = Peak Height above 2 hour time interval
= 59.58 58.42 = 0.16ft.
Rc = Observedrange = HWc LWc = 59.58 57.69 = 1.89ft.










ABSTRACT OF TIDE OBSERVATIONS
(Readings in feet above staff zero)


TIME CONTROL SUBORDINATE
STATION STATION # 1


11:35
11:40
11:45
11:50
11:55
12:00
12:05
12:10
12:15
12:20
12:25
12:30
12:35
12:40
12:45
12:50
12:55


59.38
59.39
59.41
59.42
59.45
59.46
59.47
59.50
59.51
59.53
59.53
59.53
59.55
59.56
59.56
59.57
59.58


68.26
68.28
68.30
68.32
68.33
68.34
68.37
68.38
68.38
68.40
68.43
68.44
68.45
68.46
68.46
68.46
68.47


TIME CONTROL SUBORDINATE
STATION STATION #1


13:00
13:05
13:10
13:15
13:20
13:25
13:30
13:35
13:40
13:45
13:50
13:55
14:00
14:05
14:10
14:15
14:20


59.58
59.58
59.58
59.57
59.58
59.58
59.56
59:53
59.53
59.52
59.49
59.46
59.45
59.42
59.40
59.39
59.38


68.47
68.47
68.47
68.47
68.47
68.47
68.48
68.46
68.44
68.42
68.40
68.38
68.35
68.30
68.31
68.28
68.26


20:00 57.69
(observed low extreme)


CONTROL


SUBORDINATE #1


- 68.40



- 68.30


12 13 14 12 13 14
TIME (Hours)


FIGURE 9


" 59.50



g 59.40 -

rn










Observed Data at Subordinate Station #1 (See Figure 9)


HWs = Observed High Water on staff = 68.48 ft.
LWs = Observed Low Water on Staff = 59.38 ft.
As = Peak Height above 2 hour time interval
= 68.48 = 68.34 = 0.14ft.

Computation of Subordinate Station #1 Data

As 0.14
Rs = Observed Range = x Re = x 1.89 = 1.65 ft.
Ac 0.16


AS 0.14
MRs = Mean Range = = MRc = x 1.51 = 1.32 ft.
Ac 0.16


Rs MRs
MHWs = MeanHigh Water = (HWs -) (TLc MTLc) + --
2 2
1.65 1.32
= (68.48 -- ) (58.64 58.36) + -

= 68.04 ft.

In addition to the illustrated cycle, two other tidal cycles were observed at subordinate
station # 1, with the results as follows:

Date Elevation of MHW above Staff Zero


Observation No. 2 68.04 ft
(10/22/81)
Observation No. 3 68.08 ft.
(11/4/81)






Note that the three observations have a standard deviation of 0.02 feet. Deviations such as
this would be typical when performing simultaneous observations at a two to three mile
distance from a control station in the same body of water under normal weather conditions.






















































FIGURE 10










Following determination of the elevation of mean high water at each of six subordinate
stations by a process similar to that illustrated for Station # 1, the process of identifying and
mapping the mean high water line was begun. To accomplish this, a control level line was run
between the various subordinate stations. This allowed the determination of any differences in
the elevation of mean high water at consecutive stations which might require interpolation. In
addition, this provided a set of temporary points along the coastline for subsequent identifica-
tion of the mean high water line. Using the temporary points, points on the mean high water
line were identified by leveling at frequent intervals and at each inflection point of the
shoreline. As each point was identified, it was immediately located horizontally by turning
angles and measuring distances (with electronic distance measuring devices) from two pre-
viously established horizontal control points located on offshore sand spits. By having two sets
of angles and distances, a check was provided on the accuracy of the resulting positions as well
as a means of determining the correct position if one measurement was taken or recorded
incorrectly.
The resulting mean high water line, as well as the upland boundaries for the tract, were
plotted on rectified aerial photography for a final product of the survey, and acreage was
determined from the computed coordinates of the various boundary points. Figure 10 illust-
rates a re-plot of a small segment of the boundary.
Although procedures will vary with different locations with the purpose of the survey, the
foregoing represents a typical determination. The procedures, as outlined, resulted in a precise
measurement of the acreage of a coastal tract, the on-the-ground location of the boundaries of
the tract, and a map of the boundaries that also depicted other features.

1.5.6 Requirements of Florida's Coastal Mapping Act

The Florida Coastal Mapping Act became effective on July 1, 1974. It has had consider-
able effect upon the surveying community because of its requirement that uniform specifica-
tions be utilized for all tidal surveys in the state. The key requirement of the resulting
regulations is that the Department of Natural Resources be contacted prior to the undertaking of
a tidal survey to obtain approval of procedures to be used and for the location of the control tide
station.
At the completion of the project, the Department must also be provided any revisions
made in the proposed procedures, a description of the location and tidal elevations of the
required bench marks used in the survey, and a stable base, reproducible copy of the results of
the survey.

Key selections of the Act and the implementing Rules are as follows:

Section 177.28, Florida Statutes
Legal significance of the mean high water line. -
Mean high water line along the shores of land immediately bordering on navigable waters
is recognized and declared to be the boundary between the foreshore owned by the State in its
sovereign capacity and upland subject to private ownership. However, no provision of this part
shall be deemed to constitute a waiver of state ownership of sovereignty submerged land, nor
shall any provision of this part be deemed to impair the title to privately owned submerged










lands validly alienated by the State of Florida or its legal predecessors.
No provision of this part shall be deemed to modify the common law of this state with
respect to the legal effects of accretion, reliction, erosion or avulsion.

Section 177.29 (1), Florida Statutes
Powers and duties of the Department. -
The provisions of this part shall be administered by the Department of Natural Resources.

Section 177.40, Florida Statutes
Admissibility of Maps and Surveys. -
No map or survey prepared after July 1, 1974, and purporting to establish local tidal
datums or to determine the location of the mean high water line or the mean low water line shall
be admissible as evidence in any court, administrative agency, political subdivision, or
tribunal in this state unless made in accordance with the provisions of this part by persons
described in s. 177.36.

Section 177.36, Florida Statutes
Work to be performed only by authorized personnel. -
The establishment of local tidal datums and the determination of the location of the mean
high water or the mean low water line shall be performed by qualified personnel licensed by the
Florida State Board of Professional Engineers and Land Surveyors or by representatives of the
United States Government when approved by the Department.

Section 177.35, Florida Statutes
Standards and procedures applicability. -
The establishment of local tidal datums and the determination of the locations of the mean
high water line or the mean low water line, whether by federal, state, or local agencies or
private parties, shall be made in accordance with the standards and procedures set forth in ss.
177.37-177.39 and in accordance with the supplemental regulations promulgated by the
Department.

Section 16-3.11 (3), Florida Administrative Code
Prior to undertaking the establishment of a local tidal datum or the location of the mean
high water line or the mean low water line, the person proposing to so undertake shall contact
the office of coastal boundary survey and mapping to determine the location of the closest tide
stations and tidal bench marks, whether such stations and tidal benchmarks are suitable for the
area to be surveyed so as to allow the location of the mean high water line or mean low water
line on the ground by following the procedures specified in rule 16-3.13 without further tidal
study. Only tidal bench marks shall be used in connection with tidal surveys.

Section 16-3.12(1) (2), Florida Administrative Code
The correct use of extrapolated mean high water points; interpolated mean high water
points, or lines located by leveling, tide-time comparisons, or biological interpretation; and
tide coordinated aerial photography for mean high water line demarcation will vary with each
section of coastline. Therefore, if these techniques are to be utilized in making a coastal










boundary line survey, the persons so undertaking shall obtain prior approval from the
Department of the procedures to be used.
The prior approval required under subsection (1) above may be obtained from the
Department by telephone provided that written procedures are submitted to and received by the
Department within ten days of the conditional approval. Failure to so submit written proce-
dures will automatically terminate the conditional approval.

Section 16-3.14, Florida Administrative Code
Establishment and recording of tidal bench marks. -
Whenever a tidal datum has been determined in accordance with the procedures set forth
in rules 16-3.11 (4) through 16-3.11 (6) above, it shall be permanently preserved by the
installation of at least three (3) tidal bench marks.
Whenever a tidal datum has been determined by extrapolation, or interpolation, under the
authority of rule 16-3.12(1) above, it shall be permanently preserved by the installation of at
least one tidal bench mark.
A description of the location of the tidal bench marks referred to in subsections (1) and (2)
above and the elevation of the tidal datums referenced thereto shall be filed with the Depart-
ment.

Section 177.37, Florida Statutes
Notification to Department. -
Any surveyor undertaking to establish a local tidal datum and to determine the location of
the mean high water line or the mean low water line shall submit a copy of the results thereof to
the Department within 90 days after the completion of such work, if the same is to be recorded
or submitted to any court or agency of state or local government.

Section 16-3.05(4), Florida Administrative Code
A stable base, full scale reproducible copy of the result of any survey undertaken to
determine the location of the mean high water line or the mean low water line shall be
submitted to the office of coastal boundary survey and mapping within ninety days after
completion of such work if same is to be recorded pursuant to section 177.37, Florida Statutes,
and rule 16-3.06 (3) of these rules. Reproducibles should be either 24" x 36", 30" x 36", or
8 % x 14". Copies will be available from the office of coastal boundary survey and mapping
at the expense of the requesting party.

Section 16-3.21(6), Florida Administrative Code
The acceptance by the Department of maps submitted to it pursuant to the act and these
rules shall only constitute an approval of the procedures utilized and will in no way estop the
State of Florida from contesting the location of the mean high water line or the mean low water
line in any subsequent judicial or administrative proceedings.

1.6 Techniques for Locating Non-tidal Boundaries (Cole 1979)

Referring to Section 1.3 of this text, it may be seen that significantly different definitions
of sovereign/upland boundaries exist in such waters. Therefore, significantly different techni-










ques are used for their location. The same general principles apply. That is, an elevation is
determined in a lake or a series of elevations defining a gradient is determined in a river. Then
the elevation or gradient is transferred to the ground. The difference, however, is in the method
used to determine the elevation of the boundary.
The following subsections describe various types of evidence which might be used by the
surveyor in determining the elevation of the ordinary high water line in non-tidal waters.

1.6.1 Changes in Composition of the Soil

For lakes, one of the most repeatable indicators of the ordinary high water line is a change
in the composition of the soil. This feature is the landward termination of water borne deposits
which may occur as either deposits of peat or as stratified beach deposits.
Peat is an accumulation of partly decomposed and disintergrated organic materials,
derived mainly from the parts of plants, which has accumulated where water abounds (Davis
1946). In lakes, peat is usually found on shorelines protected from wave action. Peat marsh
shorelines are characterized by a dense growth of aquatic vegetation such as arrowheads, water
lilies, sedges, grasses, rushes, etc., growing on a substratum of peat (Bishop 1967). Since peat
forms only in water and tends to oxidize when not covered with water, the landward
termination of peat deposits is a good indicator of the ordinary high water line.
In contrast to peat marsh shores, stratified beach deposits occur more graphically on lake
shorelines subject to beach erosion, often at the base of beach scarps. These deposits are the
result of wave erosion of which tends to transport the resulting detritus away from the uplands.
Generally, this transportation results in a systematic decrease in average grain size and a
tendency for the particles to become more equal in size. (Krumbein & Sloss 1962). Therefore,
a graphic difference can often be seen between the upland or parent material and the eroded
material.
To make a determination of the elevation of the changes in character of the soil, it has been
found that digging a narrow trench at approximately right angles to the shoreline allows a good
cross sectional view of the sedimentary and erosional features. A topographic profile of the
shore along the trench should be made. Soil samples should then be taken along the profile at a
few centimeters below the surface. Even when a change in soil character is not obvious, it is
advisable to take samples since laboratory analysis will sometimes indicate differences that are
not readily visible to the eye.
The primary information desired from these samples is a sediment particle size analysis.
There are various means of making this determination including sieving, observation of
settling velocity, microscopic examination, etc. However, sieving is probably the most
practical for sediment of the size normally found along lakes and rivers. This is a method of
passing the dried sediment through a series of standard size screens. From statistical analysis of
the results of this process, two factors may be determined. These are the average grain diameter
of the sediment and the degree of sorting (the extent to which the grain sizes spread on either
side of the average diameter).
From the previous discussion, the features for which one would look at the ordinary high
water mark would be a sudden improvement in the sorting together with the occurrence of the
largest average grain size.
It should be noted that since rivers often form a wide flood plain due to seasonal flooding









and the meandering process, this method probably has limited application for such waters
bodies.

1.6.2 Geomorphological Features

Other types of geological evidence for locating the ordinary high water line are various
geomorphological features such as natural levees, scarps, and beach ridges (berms).
Natural levees are low ridges that parallel a river course; they are highest near the river and
slope gradually away from it. They may be a mile or more in width, and they owe their greater
height near the stream channel to the cumulative effect of sudden loss in transporting power
when a river overspreads its banks (Thorbury 1954). Therefore, the ordinary high water level
is usually on the steep or river side and slightly below the crest of such features.
In the state of Texas, the use of natural levees has been refined to very specific techniques
for determining boundaries of streams (Stiles 1952). The boundaries resulting from such
techniques have been endorsed by both Federal and State courts in that state Oklahoma v.
Texas, Motl v. Boyd, Heard v. State.
The first step in the Texas process is to select the "lowest qualified bank" in the area of
interest. Such a bank should be an "accretion bank" (levee) as opposed to an erosional bank,
should have a well defined top and bottom, should have a depression or swale on its landward
side, and should be the lowest of such banks in the area. The second step is to determine the
"basic point" which is the elevation half way between the top and bottom of the lowest
qualified bank. The third step is to measure the difference of elevation between the basic point
and the current surface of the water at the lowest qualified bank. The boundary may then be
determined by applying the same difference of elevation to the water level up and down the
stream. By this method, the boundary at any point is the same distance above or below the
water surface at that point as at the lowest qualified bank.
A scarp, or escarpment, is a miniature cliff cut into the shore by wave action. A beach
ridge is a depositional feature on the wave cut slope. Beach ridges usually have a convex shape
and are asymmetric with the apex offset landward (Knochenmus 1967). Ridges often form at
various levels in a lake, but only the highest ridge is of significance in boundary determination.
An interesting discussion on the use of scarps for the location of the ordinary high water
mark is found in the Manual of Instructions for the Survey of Public Lands of the United States
(Bureau of Land Management 1973):

Mean high water elevation is found at the margin of the area occupied
by the water for the greater portion of each average year. At this level a
definite escarpment in the soil is generally traceable, at the top of which is
the true position for the meander line. A pronounced escarpment, the result
of the action of storm and flood waters is often found above the principal
water level, and separated from the latter by the storm or flood beach.
Another, less evident, escarpment is often found at the average low water
level, especially of lakes, the lower escarpment being separated from the
principal escarpment by the normal beach or shore. While these questions
properly belong to the realm ofgeology, they should not be overlooked in the
survey of a meander line.










As mentioned in the Manual, scarps are also found, especially in river systems, at the
extremes of the flood plain. In rivers, this may be some distance from the ordinary high water
mark. The more significant scarp would be found in the form of undercut slopes and cut banks
near the meander channel.
As can be seen, geomorphological features are useful in locating the elevation of ordinary
high water. They should be used with caution, however, since they can take a relatively long
time to develop. If a water body is in the process of reliction or rising in elevation, there could
be several sets of these features. At such times, other types of evidence are useful in resolving
the ambiguity.

1.6.3 Botanical Evidence

It has been observed and well established that many forms of plant life are distinctly
related to the amount and duration of water to which they are subjected. Some of these plants
have distinct preferences for water over and around themselves, or over their roots and lower
parts. There are others that do not tolerate water over the soil except for short periods of time.
(Davis 1972). Therefore, it seems reasonable that with knowledge of the water tolerances of
the plant life for the area in which a boundary determination must be made, considerable
evidence as to the location of the ordinary high water mark can be found.
Usually, the most reliable botanical indicators of the elevation of the ordinary high water
are the lower limits of upland trees and shrubs. Upland vegetation is that vegetation which is
killed or injured by the water standing over its roots for extended periods. The use of this
vegetation for determining the ordinary high water elevation is based upon the assumption that
these trees will eventually become established at elevations around the lake as low as the water
levels will allow (Schneider 1977). In Florida, typical indicator species found near margins of
lakes and streams are such common upland vegetation as the slash pine (Pinus elliotti), the live
oak (Quercus virginiana), and the saw palmeto (Serenoa repens).
In addition to upland vegetation, species more tolerant of the presence of water are also
helpful, especially in water bodies with gently sloping shorelines. In such areas, distinct
banding of vegetation may be seen, based on the tolerance for flooding of the various species
present. With a knowledge of the water tolerance characteristics of the various species, a
graphic picture of the flooding characteristics of the water body may be obtained.
Other types of botanical evidence which may be helpful in the determination of ordinary
high water include tree rings and tree buttress shape (Young 1953). Tree ring analysis can
sometimes be used to detect changes in growth rates reflecting water level changes. Buttresses,
which are thickening of the bases of trees, form as a response to flooded conditions. The shape
of the buttresses may sometimes be correlated to the amount and duration of flooding around
the trees.

1.6.4 Water Level Records and Other Evidence

Water level records are also a potentially valuable class of evidence for determination of
non-tidal water boundaries. Probably the most effective means of using these records is in the










form of a stage duration curve. This is made by rearranging the stage records into a cumulative
distribution graph. The statistical validity of a duration curve increases with the length of
record used, but too long a period may cause legal problems. Therefore, a problem sometimes
arises in selecting an optimum length of record and a percentage on the stage duration curve to
use.

A sufficient period of observation must be used to give statistical validity, but too lengthy
a period could possibly deny a riparian owner his rights in a dynamic water body. Many water
bodies appear to have a natural period of fluctuation following local climatical conditions
which is the optimum period. Often this period may be as long as 25 years. Obviously, if
observations are for a period of less than one of these cycles, the results could have a bias. Also
some water bodies undergo a permanent change in water elevation over a period of time. When
that is the case, observations of too long a period would tend not to reflect the current elevation
of the ordinary high water. Therefore, periods and trends in water level must be carefully
considered when choosing a length of record for boundary determination.
Regarding the selection of a certain percentage on stage duration curves, there have been
several studies attempting to relate various biological and geological features indicative of the
ordinary high water line to a certain percentage. Studies by the author on both a lake and river
have found that the line based on both geological and botanical data agreed with the twenty-five
percent level on the stage duration curve. Also, the previously mentioned section of the Florida
Statutes (Section 253.151) called for the use of the elevation that the lake level equaled or
exceeded twenty-five percent of the time. This would yield an average or "mean" high water
line. A comparison (Bishop 1967) of such curves on eleven selected lakes with the ordinary
high water line as indicated by a change in the composition of the soil found that the lake levels
stood at or above the ordinary high water for an average of ten percent of the time, with ranges
from five percent to eighteen percent among the eleven lakes.
A similar study (Knochenmus 1967) on eight Florida lakes found that the average
percentage of time that the lake level equaled or exceeded the tree line (slash pine) was five
percent, the average percentage of time that the lake equaled or exceeded the level of the beach
scarp was five percent, and for the beach ridge, it was six percent.
In view of all of the above, it appears that the ordinary high water is located somewhere
between five percent and twenty-five percent on a stage duration curve. This would localize the
correct elevation even though it may not precisely identify it. It is recommended, therefore,
that water level records be used in collaboration with other evidence discussed previously in
this section.
There are numerous other features that are sometimes indicative of the ordinary high
water line. It would be impossible to name all of these since they will vary with each different
water body. These include water marks on trees and manmade features; debris; the height of
physical structure such as docks; and affidavits from local residents. All of these should, of
course, be used cautiously and as collateral evidence.

1.6.5 Typical Non-Tidal Boundary Determination

To illustrate a typical determination of the ordinary high water line of a non-tidal water
body, actual data gathered for on a lake in north Florida will be used (Cole 1978; Green 1982).










This information includes geomorphological, soil compositional, botanical, and water level
record data.
The lake is a relatively shallow lake; and has a water surface area of approximately 6,000
acres at ordinary high water level. The lake level has a wide range of fluctuation of about 20
feet. It periodically goes completely dry due to sink hole development during times of low
water table. Figures 11 through 13 illustrate the lake edge while the lake is at a relatively low
stage.
An examination of the lake for geomorphological features offers some graphic evidence
which could be associated with the ordinary high water. At one location on the North shore of
the lake, three escarpments are visible. These are shown on the profile in Figure 14.
The most dominate of the escarpments (See Figure 11) has a base of about 96.0 feet above
the National Geodetic Vertical Datum of 1929 (NGVD), and appears to be associated with the
extreme flood level of the lake. The middle escarpment (See Figure 12) has a base of 88.5 feet
above NGVD, and appears to represent the upper margin of the area occupied by water for the
greater portion of the time. The lower escarpment (See Figure 13) is more subtle than the upper
two. It has a base elevation of 83.8 feet, and appears to represent the average low water level.
This configuration of escarpments would appear to be a textbook example of the discussion on
the use of this type of evidence found in Section 1.6.2 of this text. Note especially the quote
from the Manual of Instruction for the Survey of Public Lands which appears to specifically
describe this configuration.
Based solely on the presented geomorphological evidence, it therefore appears that the
ordinary high water line for the lake would be 88.5 feet above NGVD which is the elevation of
the base of the middle escarpment.
An examination of the lake for other geological evidence, such as change in the character
of the soil, also offers evidence of ordinary high water levels. In addition, a definite change in
the character of the soil exists at an elevation of 88.4 feet. Above this elevation the material is
dark colored top soil. Below this elevation is much lighter colored beach sand, indicating long
standing water up to that level. Therefore, this would suggest an elevation of 88.4 for the
ordinary high water line.
Botanical evidence also seems to collaborate the elevations determined by geomor-
phological and soil studies. As may be seen in Figures 11 through 13, there appears to be a
definite 'banding' of vegetation. Grasses and other short term vegetation may be seen growing
down to about the 86-foot contour (to the top of the lowest escarpment). Longer term
vegetation, such as oaks and pines, grow down to about the 88-foot contour (to just below the
middle escarpment). Extremely long-term vegetation, such as 100-year live oaks, grows down
to the 96-foot contour (at the bottom of the top escarpment).
Since the short-term vegetation could easily grow during times of lower water, the lower
limit of it is not a good indicator of ordinary high levels. The limit of the longer term upland
vegetation, however, is indicative of the upper limit of long standing water, since water over
the roots of these trees for any length of time would kill them.
Therefore, based solely on vegetation, the ordinary high water line would be at the lower
limit of long-term upland vegetation. The lowest found was a 20-foot slash pine located at an
elevation of 88.1 feet.
Hydrological records for the lake also offer evidence which could be associated with the
elevation of ordinary high water. As mentioned previously, the lake has a wide range of

































































UPPER ESCARPMENT

FIGURE II


36


~




















































MIDDLE ESCARPMENT

FIGURE 12



37




















































-* *




4'.'.' --


LOWER ESCARPMENT


FIGURE 13









FIGURE 14
Profile of Shoreline for Non-Tidal
Boundary Determination


Flood Scarp


100






96






92





88


Lower scarp


Berm


841 Distance in feet


80
Horizontal Distance (Ft.)


Middle Scarp
(change in soil character)













FIGURE 15
27 Year Water Level Graph For Lake
End of Month Water Levels From U.S. Geological Survey


1/65
Time (years)


1/70 1/75 1/80


95.00


90.00








85.00


-ill___lyii-iii i-LCIYIUli-__.l _11. I__ _~~ i










fluctuations. This is graphically illustrated in the graph of water levels for the period from 1950
to 1982 (See Figure 15). As may be seen, the lake went dry in 1957 and 1982. No systematic
water level records for the lake exist prior to 1950. However, other documentation indicates
that the lake also went dry in 1932 and 1907 (Hughes 1967). This suggests a consistent
twenty-five year cycle for the lake. Therefore, a period of twenty-five years should be used for
a statistical analysis of water level records for the lake.
Figure 16 represents a stage duration curve for the lake for the twenty-five year period
ending in 1982. As may be seen, the twenty-five year level (which is the elevation that the lake
level equaled or exceeded twenty-five percent of the time) is at 88.5 feet. As mentioned in
Section 2.6.4 of this text, this percentage has been proposed as representative of the ordinary
high water.
A review of the evidence results in the following abstract:

Geomorphological features 88.5 feet above NGVD
Change in character of soil 88.4 feet above NGVD
Botanical evidence 88.1 feet above NGVD
Hydrological evidence 88.5 feet above NGVD

As may be seen, excellent correlation exists between the various evidence. A weighted
mean of the above elevations should provide a contour for the ordinary high water line which is
based on Florida case law. Such a line, properly documented, should be a legally defensible
boundary.

1.7 Use of Government Land Office Meander Lines As Boundaries

"The traverse of the margin of a permanent natural body of water is termed the meander
line. All navigable bodies of water and other important rivers and lakes are segregated from the
public lands at mean high water elevations. In original surveys, meander lines are run for the
purpose of acertaining the quantity of land remaining after segregation of the water area."
(Bureau of Land Management 1973). The body of water itself, however, is the natural
monument and a meander line is usually considered only an approximation of the boundary by
the original surveyor.
The general rule as well as the exception is summrized in the following opinion (Connery
v. Perdido Key Inc.):
"It is an established and accepted principle, subject only to the excep-
tion hereinafter noted, that the meander line of an official government
survey does not constitute a boundary, rather than the body of water whose
shoreline is meandered is the true boundary .... The only exceptions to
the foregoing principle, that it is the water line and not the traverse line
whichforms the boundary of the land surveyed, are those instances in which
disputed lands lying between a traverse line and the body of water which it
meanders were intentionally omitted from the survey or were omitted there-
from as a result of gross error or fraud ... ."












FIGURE 16
25 Year Stage Duration Curve for Lake
95.00 1958-1982
End of Month Water Levels
From U.S. Geological Survey










o 90.00

























80.00

I I I I I 'I I I '
0 10 20 30 40 50 60 70 80 90 100
Percentage of Time Under Water











Typical cases dealing with the exception to the general rule (Lord v. Curry; Washburn v.
Burns; South Florida Farms Co. v. Goodno) involve circumstances where it was fairly
apparent that the original surveyors were intending not to meander the waterbody itself, but to
exclude low lying areas, unfit for cultivation, between the upland and the water body. Other
exceptions are typified by the case of Trustees of the Internal Improvement Fund v. Wetstone,
where the court found the meander line to be the boundary line where the mean high water line
could not be located, and Lopez v. Smith, where it is held that a meander line may constitute a
boundary "where the discrepancies between the meander line and the ordinary high water line
leave an excess of unsurveyed land, so great as to clearly and palpably indicate fraud or
mistake."

1.8 Riparian Rights Relative to Sovereign/Upland Boundaries

Riparian rights are rights relative to the use of water accruing to owners of upland
bordering on navigable, natural water bodies. In the true sense of the word, "riparian" rights
apply only to rivers and streams; with "littoral" rights more properly applying to lakes, bays
and oceans. Because of the general use of the word, however, "riparian" will be used in this
discussion as including all types of water bodies.
These rights include numerous items such as swimming, fishing, docking, and the right to
alluvium deposited by the water. Of these rights, only the latter two will be discussed herein
because of their frequent and normal relationship to sovereign/private water boundaries.
The first of these is the right to build wharves and docks. The general rule is that the
riparian owner has this right on the water adjoining his property although this right may be
subject to various requirements and restrictions. The division of this right between adjacent
riparian owners is a problem sometime arising. The general rule in rivers for such a division is
the use of a line drawn perpendicular to the "thread" or center of the main current of the stream
from the intersection of the shoreline and the upland boundary line between the two parties
(Campau Realty Co. v. Detroit). In water bodies, such as lakes and bays without a "thread",
two methods are in general use: (1) extension of the upland lot lines, and (2) lines drawn
perpendicular to the shoreline from the intersection of the shoreline and the upland boundary
line between the parties.
The second riparian right to be discussed relates to changes in the shoreline. Such changes
include those caused by withdrawal of the water (reliction); those caused by rises in the water
level; those caused by material being worn or washed away by the water (erosion); and those
caused by material being deposited along the shoreline by the water (accretion).
The general rule is that the upland owner gains title to uplands created by reliction and
accretion and loses title to uplands lost by rises in water level or erosion. However, where such
changes are not gradual and imperceptible, or where such changes are artificially induced, the
general rule may not apply. Where shoreline changes occur suddenly, such as during storms,
this is termed "avulsion" and it is generally held that title does not change with such shoreline
changes. Likewise it is usually held that shoreline changes resulting from manmade changes,
such as those resulting from dredging or groins, do not change title.
The State of Florida has a specific statute (Section 161.05, Florida Statutes) on this
subject, which states:










". .. any additions or accretions to the upland caused by erection of such
works or improvement shall remain the property of the State if not previously
conveyed."

Florida case law generally holds that artificial accretion caused by the upland owner
himself remains the property of the State (Mcdowell v. Trustees of the Internal Improvement
Fund of the State of Florida). However, it generally holds, contrary to the above cited statute,
that artificial accretion caused by third parties will accrue to the upland owner (Board of
Trustees v. Madeira Beach Nominee Inc.).
When accretion occurs along a shoreline which does result in a title change, a problem
sometimes results in the division of title to the new lands, between the adjacent riparian
owners. There are several methods in general use to accomplish such a division. These include
(1) using lines perpendicular to the thread of the stream from the intersection of the old
shoreline and the upland boundary between the adjacent tracts; (2) using lines perpendicular to
the old shoreline from the intersection of the old shoreline and the upland boundary between
the adjacent tracts; (3) proportionment of the new shoreline to the previous divisions of the old
shoreline by length; and (4) using lines perpendicular to the new shoreline from the intersection
of the old shoreline and the upland boundary between the adjacent tracts.

1.9 Boundaries of Leases in Sovereign Waters

Another type of sovereign/private boundaries deserves mention in this section. These are
boundaries of private leases in sovereign waters. With the increasing utilization of our
submerged lands for mineral extraction and aquaculture, the boundaries of such leases are
taking on greater importance, and requirements for their location are becoming commonplace.
As is the case for tracts of uplands, there are various methods of describing such offshore
tracts. These include metes and bounds from onshore points or navigational aids, metes and
bounds from geographic coordinates used for the corners of the tract, and the use of a series of
lease blocks pre-defined by geographic (or plane) coordinates.
On the outer continental shelf of the United States (seaward of state waters), the U.S.
Bureau of Land Management has developed a system of blocks described by Universal
Traverse Mercator coordinates. These blocks are 4,000 metres on each side in the Atlantic, and
15,840 metres on each side in the Gulf of Mexico.
Several states have established similar systems for their state waters. For example,
Florida's Governor and Cabinet, acting as Trustees of the Internal Improvement Trust Fund,
adopted a system for Florida's submerged lands on March 17, 1981. This plan, which was
drafted by the author, subdivided "the submerged lands of the State into 1,000 metre square
blocks for legal description purposes for future leases and easements. These blocks have their
perimeters on the even thousand metres of the Universal Traverse Mercator (UTM) grid and
are identified by the UTM nothing coordinate of the south line of the block and by the eating
coordinate of the west line of the block ."
The use of such blocks have obvious advantages in the management of the submerged
lands of the State. Knowing the coordinates of the blocks, it is a fairly simple process to locate










the blocks on a map or chart of the area of interest. In addition, preparation of legal descriptions
of the blocks in those systems formally adopted is simply a matter of referring to the
appropriate block number. Likewise, the process of physically locating the boundaries of such
lease blocks is a straightforward process. They can be precisely located, if necessary, by
azimuths and distances from horizontal control points, with published coordinates, on the
shore. For most purposes, however, it is sufficient to locate such blocks by various naviga-
tional systems, such as LORAN-C or short range position fixing systems.























































46















2. STATE/FEDERAL WATER BOUNDARIES 49

2.1 Background and History 49
2.2 Boundary Definitions 49
2.3 Techniques for Locating State/Federal Water Boundaries 51

























































48











2. STATE/FEDERAL WATER BOUNDARIES


2.1 Background and History

In earlier sections it has been pointed out that United States case law has upheld state
ownership of tidelands, and that through the early part of the 20th century, it was generally
believed that this same rule applied to the marginal sea (Hanna, 1951). However, in the
1930's, with the discovery of oil in the submerged lands off the California coast, the federal
government began asserting claims to such lands. The resulting conflict led to a series of cases
called the Tidelands Decisions (U.S. v. California, U.S. v. Louisiana, and U.S. v. Texas).
These cases held that the federal government, rather than the states, was owner of the marginal
sea.
Following the Tidelands Decisions, considerable pressure was reportedly exerted upon
the U.S. Congress by various coastal states. This culminated in the passage of the Submerged
Lands Act (43 U.S.C., s 1301-15, 1970) in 1953. This act relinquished federal interest in the
marginal sea within that state's boundaries.
Therefore, each coastal state now holds title to a band of land bordering its coastline. It is
the seaward boundary of this band of state waters that we now address. This boundary
represents the farthest extent of state sovereignty and the beginning of federal jurisdiction.

2.2 Boundary Definitions

The earliest concept of the closed or marginal sea evolved as a matter of self defense on
the part of various coastal nations. This basically was the zone which the nation could
comfortably defend for its exclusive use from hostile shipping. In the 18th century this was
more or less standardized for a while by the so-called "Cannonshot" rule. By that informal
rule, the boundary of the marginal sea was the distance from shore that a cannon shot could
reach. This was generally considered to be three miles.
This same historic definition has become the basic rule, for the most part, for the current
seaward boundary of state ownership.
The Submerged Lands Act defines this boundary in the following two sections:

Section 2 (b)
"The term 'boundaries' includes the seaward boundaries ofa State or
its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed
at the time such State became a member of the Union, or as heretofore
approved by the Congress, or as extended or confirmed pursuant to section 4
hereof but in no event shall the term 'boundaries' or the term 'lands beneath
navigable waters' be interpreted as extending from the coast line more than
three geographical miles into the Atlantic Ocean or the Pacific, or more than
three marine leagues into the Gulf of Mexico."

Section 4
"The seaward boundary of each original coastal State is hereby









approved and confirmed as a line three geographical miles distant from its
coastline or, in the case of the Great Lakes, to the International boundary.
Any State admitted subsequent to the formation of the Union which has not
already done so may extend its seaward boundaries to a line three geo-
graphical miles distant from its coastline or to the International boundaries
of the United States in the Great Lakes or any other body of water traversed
by such boundaries. Any claim heretofore or hereafter asserted either by
constitutional provision, statute, or otherwise, indicating the intent of a
State claim so as to extend its boundaries is hereby approved and confirmed,
without prejudice to its claim, if any it has, that its boundaries extend beyond
that line. Nothing in this section is to be construed as questioning or in any
manner prejudicing the existence of any State's seaward boundary beyond
three geographical miles if it was so provided by its constitution or laws
prior to or at the time such state became a member of the Union, or if it has
been heretofore approved by Congress."

It is noted that two states on the Gulf of Mexico are especially affected by the last sentence
of the above quote. The issue of whether any of the Gulf coast states were entitled, under the
Act, to a grant of submerged lands greater than three nautical miles from the coastline was
decided by the Supreme Court in 1960 (U.S. v. Louisianna, Texas, Mississippi, Alabama and
Florida). The decision held that Texas and Florida were entitled to submerged lands extending
three leagues into the Gulf due to the extent of their boundaries at the time of admission into the
Union. However, it was held that Louisiana, Mississippi, and Alabama were entitled to only
three geographical miles.
The seaward boundary for Florida was further clarified by the court in 1974 (U.S. v.
Florida). In that decision, the court reaffirmed the earlier decision and found the dividing line
between the Atlantic Ocean and the Gulf of Mexico to be a line running due west from the
Marquesas Keys along latitude 24 35" North.
Therefore, the seaward boundary for Florida is three geographical miles from the
coastline in the Atlantic and on the south side of the Keys to a point at latitude 240 35" North. At
that point the boundary goes due west to a point three marine leagues from the coastline. Then
the boundary follows the coastline, at three leagues distance, northerly and westerly along the
Gulf coast. A separate envelope, three miles wide to the south and three leagues wide to the
north exists around the Dry Tortugas Keys.
For clarification, several terms used in this discussion bear definition. These are as
follows:

Geographical Mile: A geographical mile is the length of one minute of an
arc on the equator or 6087.09 feet on the Clarke Spheroid of 1866 (Bowditch
1962). It is noted that this is slightly different than an international nautical
mile, which is approximately 6076.11549 U.S. feet.

Marine League: A marine league is three geographical miles.

Coastline: The coastline for the purpose of measuring out to the seaward
boundary is ".... .The line of ordinary low water along that portion of the


50










coast which is in direct contact with the open sea and the line marking the
seaward limit of inland water." (Section 2 (c), Submerged Lands Act) The
"seaward limit of inland waters" referred to in the above definition refers to
any closing line drawn across bays, river mouths, or other inland waters. For
a more complete discussion of such closing lines, please refer to Section 3.2
of this text. The "line of ordinary low water" or baseline for measuring that
to the boundary is interpreted to be the low water line along the coast, as
marked on large scale charts of the coastal state (Article 3, First Geneva
Conference on the Law of the Sea). Traditionally for the United States, this
has been mean lower low water on the Pacific coast and mean low water on
the Atlantic Coast. Recently, however, this has changed to mean lower low
water on both coasts (National Ocean Survey, 1980).

2.3 Techniques for Locating State/Federal Water Boundaries

For most purposes, the seaward water boundary of state waters may be located, as
suggested in the previous section, by drawing three mile (or three league) arcs from salient
points on the low water line on large scale nautical charts. This line, as drawn, can then be
approximately located by various navigational systems. However, due to various jurisdictional
questions which occasionally arise, it is sometimes necessary to locate a point or area in
relation to such a boundary with greater precision than allowed by the above method. In such
cases, a three step process would be followed. These steps would be

(1) establishment of a precise datum for mean low water near the various salient
points to be used;
(2) location of the line of mean lower low water around these points; and
(3) location of the point or area in question and its relationship to arcs drawn
three geographical miles (or three leagues in some cases) seaward of salient
points on the mean lower low water line.

The first two steps basically follow techniques described in Section 1.5 of this text. The
elevation of mean lower low water may be determined where needed by simultaneous
observation with an established control station and computations using either the Standard
Method or an inverted version of the Amplitude Ratio method. The intersection of this
elevation with the rising shore may then be determined by any of the three methods suggested
for mapping high water lines. This then established the baseline from which the offshore
boundary is measured.
Where there are rivers or bays, closing line across the entrances would be drawn as in the
manner described for national boundaries in Section 3.2. Likewise, where there are offshore
shoals, islands, or rocks which uncover at mean lower low water, the seawardmost part of the
mean lower low water line of these would control as in the case of national boundaries.
Location of the offshore point or area in question would be determined by conventional
triangulation, traverse, or trilateration methods of surveying.
























































52
















3. FEDERAL WATER BOUNDARIES 55

3.1 Introduction 55
3.2 Definitions of Baselines for Offshore Boundaries 57
























































54










3. FEDERAL WATER BOUNDARIES


3.1 Introduction

As mentioned in Section 3, the breadth of the coastal zone claimed by various coastal
nations for their exclusive use has traditionally been three miles based on the informal "cannon
shot" rule. Today, however, there is no general rule. As various nations have begun exploiting
the riches of the sea and sea floor, widely ranging claims have been made. This issue has been
frequently debated at international conferences on the law of the sea. At the 1930 Hague
Conference of the International Law Commission, and at more recent United Nations Confer-
ences on the Law of the Sea, attempts were made to adopt a standard width zone without
success.
In 1982, a United Nations conference provisionally adopted an international law of the
sea treaty giving coastal nations a territorial sea running out to 12 miles from shore with
exclusive economic zones of 200 miles or to a maximum of 350 miles if the country's
continental shelf extends that far. This treaty will become effective one year after 60 countries
have ratified it, which will probably be in September of 1983. At this time, it is unclear whether
the United States will be a party to the treaty.
Paralleling claims by other coastal nations, the United States claim has also changed
considerably during the last half century. Prior to the 1930's, the United States claimed the
three mile territorial sea and made no attempt to exert jurisdiction beyond that limit.
During the 1930's, in connection with enforcement of Prohibition laws, the jurisdiction of
the United States for law enforcement was extended to the limits of a 12 mile "contiguous
zone". It is noted that this jurisdictional extension was of an extra-territorial nature and did not
extend the territorial sea or ownership. Under Article 24 of the 1950 United Nations Conven-
tion on the Territorial sea and Contiguous Zone, this jurisdiction is limited to that necessary to
prevent infringement of customs, fiscal, immigration, or sanitary regulations within U.S.
territory, or to punish such infringements (Colson 1982).
In 1945, President Truman further extended the claimed jurisdiction of the United States
by a proclamation stating ".. the Government of the United States regards the natural
resources of the subsoil and seabed of the continental shelf beneath the high seas but
contiguous to the coasts of the United States as appertaining to the United States, subject to its
jurisdiction and control" (Truman 1945; 43 USC Sec. 1332[l]). The continental shelf is a
gently sloping plain of land along the coast of most islands and continents. It varies greatly in
width, from a few miles to hundreds of miles. It is considered to end where the continental
slope begins to drop more steeply to the ocean floor (See Figure 17). The limit of the
continental shelf and of this claim is defined as out to "a depth of 200 metres or, beyond that
limit, to where the depth of the superjacent water admits of the exploitation of the natural
resources of the said area .. (1958 Convention on the Continental Shelf, Article 1).
In 1977, following claims by other nations and failure of the United Nations Law of the
Sea Conference to develop standards, the United States claimed exclusive fishing management
jurisdiction to the 200 mile limit, regardless of whether this line went beyond the continental
shelf (16 USC Sec. 1811).
Therefore, the current posture of the United States is to claim ownership of a territorial sea



















































FIGURE 17










of three miles from its coastline; to claim jurisdiction for enforcement of certain laws over a 12
mile contiguous zone; to claim exclusive jurisdiction over the natural resources to the extent of
our continental shelf; and to claim exclusive fishing rights to 200 miles. At the time of this
writing, it is not known how the new United Nations treaty will impact on these claims, since
the United States may not be a party to the treaty. Even if the United States were to be a party to
the new treaty, it would not be required to exercise the authorized jurisdiction, but only to
recognize other nations' jurisdictions authorized by the treaty (Colson 1982).
It is interesting to note that the United States exercises only a three mile territorial sea,
while the states of Florida and Texas exercise a three league territorial sea in the Gulf of Mexico
based on U.S. Supreme Court decisions. Therefore, the outer two-thirds of the state territorial
sea is not opposable by the United States against other nations (Colson 1982). Presumably,
these two states would have to provide their own defense against foreign occupation within
those areas. The three league limit is recognized by the United States in those areas, however,
as a dividing line between federal and state fishery and continental shelf jurisdiction (Colson
1982).

3.2 Definitions of Baselines of Offshore Boundaries

As mentioned in previous sections, offshore boundaries are usually defined as a line a
certain number of miles seaward of the coastline. The coastline is in turn defined as the low
water line depicted on charts of the area (which in the United States is currently the mean lower
low water line). The mean lower low water line serves as the baseline for locating state/federal
boundaries as well as various federal jurisdictional limits. Obviously, when indentations in the
coastline occur or when islands or other unusual coastline configurations are encountered,
there are various interpretations which could be made. This would impact state and federal, as
well as international boundaries. Therefore, the United Nations Law of the Sea Conferences
have developed rigid guidelines for baselines for various coastline configurations. These
guidelines have also been adopted by case law as binding on state/federal boundaries. Some of
these guidelines are outlined below.

Rivers: Where a river flows directly into the sea, the baseline runs in a straight line across
the river between points on the low tide line on either side of the mouth of the river.

Bays: Bays are defined as "well marked indentations whose penetration is in such
proportion to the width of its mouth as to contain landlocked waters and constitute more than a
mere curvature of the coast". This is further clarified by the following statement:

"An indentation shall not, however, be regarded as a bay unless its
area is as large as, or larger than, that of the semi-circle whose diameter is a
line drawn across the mouth of that indentation."

The area of a bay, for the purpose of the above definition, is the area lying between the low
water marks within the natural entrance points of the indentation.
For the purposes of drawing a baseline across the mouth of bays, a closing line is drawn
across the mouth of any bay if it does not exceed 24 miles in width at the mouth.









If an indentation qualifies as a bay although the distance between the headlands exceeds
24 miles, then closing lines would be drawn across any portions of the bay with a width of less
than 24 miles.
An exception to the rule on bays is any indentation considered a "historic bay". This is an
indentation which has historically been used exclusively by one nation and whose right to said
area has been long recognized by other nations. For such bays, closing lines are drawn across
the mouth regardless of the width.

Low Tide Elevations: A low tide elevation is defined as "a naturally formed area of land
which is surrounded by and above water at low tide but submerged at high tide". (Article 3,
1958 United Nations Convention on the Law of the Sea) Where low tide elevations exist within
the territorial sea, when measured from the mainland or an island, then "the low water line on
that elevation may be used as the baseline".

Islands: An island is defined as "a naturally formed area of land, surrounded by water,
which is above water at high tide". (article 10, 1958 United Nations Convention of the Law of
the Sea) Islands have their own baseline for measuring out. As with the mainland, the baseline
is the low water line around the island.

Harbors: "For the purpose of delimiting the territorial sea, the outermost permanent
harbor works which form an integral part of the harbor system shall be regarded as forming part
of the coast." (Article 8, 1958, United Nations Convention on the Law of the Sea)
















4. BOUNDARIES IN NON-SOVEREIGN WATERS 61

4.1 Introduction 61
4.2 Boundaries in Streams 61
4.3 Boundaries in Lakes 61
4.4 Changes in Non-sovereign Water Boundaries 61






















































60









4. BOUNDARIES IN NON-SOVEREIGN WATERS


4.1 Introduction

Previous sections of this text have dealt solely with boundaries associated with publicly
owned or sovereign water bodies. Obviously, water bodies whose submerged lands are
privately owned are also frequently used as boundaries since the water body offers a perma-
nent, easily recognized monument.
Generally, descriptions of parcels of land on either side of a privately owned water body
will call "to the stream" or "to the lake". The boundary question involved would be to
determine to what point in the stream or lake such a call conveys ownership.


4.2 Boundaries in Streams

Perhaps the most elementary case involving a non-sovereign water boundary is that
involving a stream as the boundary between two parcels of land. In such a case where the deeds
call "to the stream", the center of the main current of the stream would be the boundary. This
is often called the "thread" of the stream. Where there are multiple channels, such as around
islands, the main or largest channel would form the boundary. As with most boundaries, this
type of boundary would shift if the thread of the stream shifted with time, unless such a shift is
avulsive action.

4.3 Boundaries in Lakes

When a non-sovereign lake or pond forms a boundary between two or more parcels, this
creates a more complicated boundary problem than a stream boundary. This is due to the
non-linear shape of a lake and the lack of a main channel or current. Therefore, the previously
given rule of division for streams would not be applicable.
Generally, in such cases, the rule is that the submerged land beneath non-sovereign lakes
are owned by the surrounding upland owners. Where all the surrounding deeds call "to the
lake". each riparian owner has title to a center point or center line. In a perfectly round lake,
this would consist of merely cutting the lake into "pie slices". Where the lake is irregularly
shaped, however, it is obvious that there could be more than one boundary interpretation.

4.4 Changes in Non-sovereign Water Boundaries

Generally, laws regarding changes in water boundaries due to physical changes in the
water body are the same for private/private boundaries occurring in non-sovereign waters as
they are for sovereign/upland water boundaries.
Natural and gradual changes in channel location generally result in corresponding
boundary shifts. Sudden changes due to avulsion or human activities generally do not result in
a boundary shift.













EPILOGUE


The preceding has been an attempt to present an overview of the various facets of water
boundaries. For readers interested in further information on a particular phase of this field,
literature is available although sometimes difficult to obtain. The references following this
section offer a starting point.
As may be seen from the information presented within this text, some areas within the
field of water boundaries have developed to the point of being well defined both legally and
technically. Other areas still need further judicial or legislative clarification, or technical
research.
For example, the legal definition and techniques for the location of tidal boundaries have
advanced to the state of being relatively clear cut and uncontested, at least in Florida. Other
states are still struggling to obtain that level.
On the other hand, non-tidal water boundaries are not as clear. As a matter of fact, they
currently may be considered quite "muddy" both legally and technically. In Florida there is
no statutory law on this subject, other than the one previously mentioned (253.151, F.S.)
which has been declared unconstitutional. Methods traditionally accepted by case law for
locating such boundaries, such as using botanical and geological indicators, sometimes give
ambiguous results. A more consistent method, that of using water levels, is still in its infancy
of acceptability by the courts, and could use further technical research in addition to judicial or
legislative clarification.
Likewise the definition of "navigable" needs legislative or judicial attention to determine
which water bodies are sovereign. This is evidenced by a recent Florida Supreme Court
opinion (Odom v. Deltona) which recommended that the state legislature address this issue.
An additional water boundary needing clarification is that of the federal territorial sea.
The officially claimed limit is presently in conflict with the boundaries of two states, and in
addition, is inconsistent with those agreed to by a majority of the United Nations Conference
on the Law of the Sea.
Hopefully, the proceeding text will serve to stimulate study and clarification of these
problem areas as well as provide a perspective on all the various aspects of water boundaries.























































63
























































64








BIBLIOGRAPHY


Bishop, E.W., A Study of High Water lines of Some Florida Lakes Part II, Florida
Department of Conservation, 1967.
Bowditch, Nathaniel, American Practical Navigator, U.S. Navy Hydrographic Office, Pub.
No. 9, 1962.
Bureau of Land Management, Manual of Instructionfor the Survey of the Public Lands of the
United States, 1973.
Cole, George M., "Proposed New Method for Determining Tidal Elevations in Intertidal
Zones", Technical Papers, American Congress on Surveying and
Mapping, Spring 1981.
Cole, George M., "Non-tidal Water Boundaries", Florida Bar Real Property, Probate and
Trust Law Newsletter, Vol. X, No. 3, January 1979.

Cole, George M. Ordinary High Water Mark Determination Lake Jackson, Florida
Department of Natural Resources, Bureau of Survey and Mapping,
December 1978
Cole, George M., "Tidal Boundary Surveying" Technical Papers, American Congress on
Surveying and Mapping, Spring 1977.
Colson, David A. (Correspondence), Assistant Legal Advisor on Oceans, International
Environmental and Scientific Affairs, U.S. Department of State, 1982.
Davis, J.H., Establishment of Mean High Water Lines in Florida's Lakes, Florida Water
Resources Research Center, University of Florida, Pub. No. 24, 1972.
Davis, J.H., The Peat Deposits ofFlorida, Florida Department of Conservation, Geological
Bulletin No. 24, 1946.
Graber, Peter H.F., "The Law of the Coast in a Clamshell", Shore and Beach, American
Shore and Beach Preservation, Vol. 48, No. 4, October 1980.
Green, Kirby B., Report on the Ordinary High Water Elevation of Lake Jackson (Draft),
Florida Department of Natural Resources, Bureau of Survey and Mapping,
January 1982.
Hanna, "The Submerged Lands Cases', 3 Baylor Law Review (1951)
Hale, M., DeJure Maris, as reprinted in Moore, "A History of the Foreshore and the Law
Relating Thereto", 78 Am.Jur. 2d., Waters, s380(1975), 667-892.
Hughes, Gilbert H., Analysis of the Water Level Fluctuations of Lake Jackson near
Tallahassee, Florida, Investigative Report No, 48, U.S. Geological
Survey, 1967.











Knochenmus, D.D., Shoreline Features as Indicators of High Lake Levels, U.S. Geological
Professional Paper No. 575-C, 1967.
Krumbein and Sloss, Stratigraphy and Sedimentation, Freeman and Company, 1962.

Maloney, Frank E. and Ausness, Richard C. "The Use and Legal Signficance of the Mean
High Water Line in Coastal Boundary Mapping", The North Caroline Law
Review, Vol. 53, December 1974, Number 2
Maloney, Frank E., "The Ordinary High Water Mark: Attempts at Settling an Unsettled
Boundary Line", University of Wyoming Land and Water Law Review, Vol.
XIII, No. 2, 1978.
Manner, H.A., Tidal Datum Planes, Special Publication No. 135, U.S. Coast and Geodetic
Survey, 1951 (Rev.).
Natiorial Ocean Survey, National Tidal Datum Convention of 1980, U.S. Department of
Commerce, 1980.
National Ocean Survey, Our Restless Tide, U.S. Department of Commerce, 1976.
Schneider, D.L., et al., Ordinary High Water Elevation of Lake Louisea, Bureau of Coastal
and Land Boundaries, Florida Department of Natural Resources, 1977.
Shalowitz, Aaron L., Shore andSea Boundaries, U.S. Coast and Geodetic Survey, Pub. 10-1,
1962.

Stiles, Arthur A., "The Gradient Boundary", The Texas Law Review, Vol 30, No 3, January
1952.

Swanson, R. Lawrence, Variability of Tidal Datums and Accuracy in Determining Datums
from Short Series of Observations, National Ocean Survey, Technical
Report No. 64, 1974.
Thornbury, Priciples of Geomorphology, Wiley and Sons, 1954.
Truman, H.S., The Continental Shelf, Proclamation No. 2667 (59 Stat. 884), September 28,
1945.

Wood, Fergus J., The Strategic Role ofPerigean Spring Tides in Nautical History and North
American Coastal Flooding, National Ocean Survey, 1976.
Young, Sanford, Personal Communication, 1983.
Zettler, Bernard D., "Tidal Characteristics from Harmonic Constants", Journal of the
Hydraulics Division, Proceedings of the American Society of Civil
Engineers, Vol. 85, No. HY12, December 1959.
Zettler, Bernard D., "Methods of Estimating Mean High Water from Partial Data Curves",
Technical Papers, American Congress on Surveying and Mapping, Spring
1981.











CITATIONS CASE LAW


Attorney General v. Chambers, 4 De G.M. & G. 206, 43 Eng Rep 496 (1854).
Barney v. Keokuk, 94 U.S. 324 (1876).
Board of Trustees v. Medeira Beach Nominee, Inc., 272 So. 2d 209 (2d DCA 1973).
Borax, Ltd. v. City of Los Angeles, 296 U.S. 10 (1935).
Campau Realty Co. v. Detroit,
Cinque Bambini Partnership et al. v. State of Mississippi et al.
City of Tarpon Springs v. Smith, 81 Fla 479, 88 So 613 (1921).
Clement v. Watson, 63 Fla 109, 58 So. 25 (1912).
Connery v. Perdido Key, Inc.
Florida Board of Trustees v. Wakulla Silver Springs Company,
Heard v. State, 146 Tex 139, 204 S.W. 2nd 344 (1947)
Howard v. Ingersoll, 54 U.S. 381, 427 (1851).
Kelly's Creek and N. W.R. Co. v. United States, 100 ct. CI 396 (1943), modified (1944).
Lopez et al., v. Smith et al., 109 So 2d 176 (Fla 2d DCA) 1959.
Lordv. Curry 71 Fla. 68, 71 So. 21 (1916).
Luttes v. State, 324 SW 2d 167 (1958).
Martin v. Busch, 112 So. 274 (Fla Sup. G., 1947).
Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842).
McDowell v. Trustees ofthe Internal Improvement Trust Fund ofthe State ofFlorida, 90 S. 2d
715 (Fal Sup Ct 1956).
Oklahoma v. Texas, 260 U.S. 606, 261 U.S. 340 (1923).
Motl v. Boyd, 116 Tex 82, 286 W.W. 458 (1926).
Odom v. Deltona, Fla 341 So 2d 977 (1976).
Pollard's Lessee v. Hargan, 3 How 212 (44 U.S. 1845).
South Florida Farms v. Goodno, 84 Fla. 532, 94 So. 672 (1922).
State ofFlorida et al. v. Florida National Properties, 338 So. 2d 13 (Fla 1976)
Tilden v. Smith, 113 So. 708 (Fla. 1927).
Trustees ofInternal Improvement Trust Fund v. Wetstone, 222 So 2d 10 (Fla 1969).











United State v. California, 332 U.S. 19 (1947).
United States v. Florida, 425 U.S. 791 (1976)
United States v. Joder Cameron, 466 Fed Supp 1099 (1979).
United States v. Louisiana, 339 U.S. 699 (1950).
United States v. Parker, No. 75-34, N.D. Fla. 1976.
United States v. Texas, 339 U.S. 707 (1950).
United States v. Louisiana, Texas, Mississippi, Alabama and Florida, 363 U.S.I. 212 (1960)
Washburn v. Burns, 196 So. 2nd 923 (1967)














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WATER BOUNDARIES


"Water boundaries are perhaps the oldest and most widely used of man's
boundaries. Yet, in today's society, they are probably the most frequently and
bitterly contested boundaries."
This text provides a comprehensive overview of both the legal and technical
aspects of these widely used but often misunderstood boundaries, as well as
illustrating by case studies typical determinations of water boundaries. Though
oriented towards water boundaries in the state of Florida, a large percentage of the
information presented should be of interest and use to all persons concerned with
such boundaries in any area.

THE AUTHOR


George M. Cole is president of Florida Engineering Services Corporation of
Tallahassee, Florida. Mr. Cole has pioneered in the development of techniques for
precise determination of water boundaries and has a long history of involvement
with such boundaries, experienced during a period of service with the U.S. Coast
and Geodetic Survey, more recently as the State Cadastral Surveyor for Florida,
and currently in his role as a private consultant.


ISBN 0-910845-13-1




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